Kumar (Migration)

[2022] AATA 3497

Kumar (Migration) [2022] AATA 3497 (24 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashwin Kumar
Mrs Atleshni Lata Datt
Master Krinay Ashwin Kumar

CASE NUMBER:  2114024

HOME AFFAIRS REFERENCE(S):          BCC2017/2120851

MEMBER:Peter Emmerton

DATE:24 August 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 24 August 2022 at 12:13pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – ICT Support Engineer – subject of an approved nomination – adverse information ­– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of ICT Support Engineer. ANZSCO 263212.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(5) and therefore cl 187.233 of Schedule 2 to the Regulations because the position is no longer available to the applicant as they had ceased employment with the nominator.

6. The applicants appeared before the Tribunal on 24 August 2022 to give evidence and present arguments. Mrs Atleshni Lata Datt, the visa applicant’s partner and a secondary applicant was invited by the Tribunal to comment but she declined.

7. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the position in the original nomination is still available to the applicant.

   Nomination of a position

9. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

11. On 12 July 2018, the nominating employer, Centre for Appropriate Technology Incorporated, informed the department that Mr Ashwin Kumar, had ceased employment with the nominator.

12. This meant that the requirements of cl187.233(5) could not be met because the position was no longer available to the visa applicant. 

13. On 28 September 2020, Mr Ashwin Kumar was issued with a natural justice letter inviting him to comment within 28 days.

14. Mr Ashwin Kumar responded to the natural justice letter on 29 October 2020. The Tribunal notes that reply was after the stipulated 28 days. He provided evidence that he has secured employment with another employer, Our Lady of the Sacred Heart High School in Alice Springs, and provided supporting documents including an employment contract. Mr Ashwin Kumar also provided a copy of the last payslip from the previous employer.

15. He requested the Department, considering this new information, to proceed with the current visa application. The Department informed Mr Ashwin Kumar that this is not an option and that new nomination and visa applications would have to be lodged with the Department. They then stated that since the appointment to which the visa application by Mr Ashwin Kumar relates to is not available anymore, Mr Ashwin Kumar does not meet regulation 187.233. They stated in their decision that as cl 187.233 is not satisfied the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa were not satisfied and the visa application for the visa was refused.

16. The Tribunal scheduled a hearing for 9 August 2022. This was rescheduled at the applicant’s request as he was travelling overseas. The new date was scheduled for 24 August 2022.

17. The Tribunal acknowledges the recent letters of support, (August 2022), from Ms Marion Scrymgour MP, Member for Lingiari, the Honourable Mr Chansey Paech MLA and Mr Navin Bhatnagar, President Hindu Society of Central Australia (Inc). The Tribunal has read and turned its mind to these documents. They have been considered in the Tribunal’s deliberations.

18. At the hearing the Tribunal confirmed with Mr Kumar that he was no longer working the original nominating entity, (Centre for Appropriate Technology Incorporated). When asked he responded that was correct.

19. The Tribunal then asked if he was currently working at Our Lady of the Sacred Heart High School in Alice Springs. He stated that he was not and when asked when and why he had ceased employment there he stated that he advanced his career by accepting a more senior role early in 2022 at Tangentyere Council as their IT Manger, based in Alice Springs. This is a large prominent and respected Aboriginal run organisation which undertakes a range of essential support services in the community. Current staff headcount according to the applicant is in excess of 250 people. The Tribunal is in no doubt that the loss of a scarce resource like Mr Kumar will be substantial.

20. The following quote is the introduction to the organisation on their web site.

    ‘For more than 40 years we have been a proud Aboriginal Community Controlled Organisation, working with every household in the Alice Springs Town Camps and more than 10,000 Aboriginal people from across Central Australia. We know that culture forms an integral part of an individual's identity, and embed this in everything we do – most of our staff are Aboriginal and local, our programs are culturally safe and competent, and we are led by Elders from every Town Camp in our region.’

21. The Tribunal then formally presented Adverse Information at the Hearing under SS.359AA.

    DISCLOSURE OF ADVERSE INFORMATION AT A HEARING [SS.359AA]

    ‘I am now going to put to you formally under the law under Sub Section 359AA some pieces of information that I have. This is information that would be the reason or part of the reason for affirming the decision under review.

    I will also explain to you why the information is relevant to my decision. Please tell me if you don’t understand the information or if you don’t understand why it is relevant.

    I will then ask you to comment on or respond to that information. You don’t have to respond now, you can ask for more time to comment or respond to the information. You already know about most of this information but I am required to put it to you formally.

    Let me take you through the information and I shall ask you to comment or respond to that information.

    The information is as follows………….

    The Tribunal has information confirmed by you at this hearing and previously placed in the Department’s decision and also presented to you as adverse information by the Department in a letter dated 28 September 2020 that you are not working for the Centre for Appropriate Technology Incorporated. They were the nominator for your visa application.

    The information is relevant because………….

    If you are no longer employed by the nominator associated or linked to your original visa application, you fail to meet the requirements of clause 187.233(5). This clause stipulates that the position must still be available to the applicant. Clearly, by your own admission and the Departments knowledge as provided by you to the Tribunal this is not the case. If clause 187.233(5) is not met, then clause 187.233 is not be satisfied. Therefore, your visa can not be granted. The Tribunal like the Department has no discretion in this matter.

    I wish to also explain to you that even if you had another job, because it is not the position linked to your original visa application with the original nominator your visa can not be granted. I would remind you that the Department explained this to you in their letter to you dated 28 September 2020 and also in their Decision refusing your visas on 23 September 2021.

    I will now ask you to comment on or respond to that information. You don’t have to respond now, you can ask for more time to comment or respond to the information.’

22. The applicant chose to respond immediately.

23. The Tribunal listened to the visa applicant’s comments in which he explained the circumstances he finds himself in and how they came about. He explained that had his agent provided all of the information required by the Department originally the outcome would have been different. He also pointed out that he felt the Delegate should have contacted his agent and requested more information which was not done. The Tribunal explained that it was his agent and himself responsible for supplying all the information needed in his application and not the responsibility of the Delegate to seek additional information. He also stated that at the time his original visa application was rejected he was working with the nominator. The Tribunal empathises with the applicant but is required to adhere to the legislation as it stands. The Tribunal suggested if he thought it appropriate, that he may wish to seek further advice from a suitably qualified representative or immigration lawyer once he had received the Tribunal’s Decision.

24. The Tribunal accepts that he is disappointed and frustrated. It also acknowledges that his loss to his current employer is likely to be considerable. However, it is not within the Tribunal’s power to apply discretion in this matter. If clause 187.233(5) can not be met, as is clearly the case, then 187.233 is not met and subsequently the visa can not be approved.

25. Therefore, cl 187.233 is not met.

26. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    Secondary applicants

    ·Mrs Atleshni Lata Datt

    ·Master Krinay Ashwin Kumar

27. The Tribunal has determined that the secondary applicants are not members of a family unit of a primary applicant who holds a Subclass 187 visa granted on the basis of having satisfied the primary criteria for a Subclass 187 visa.

28. The secondary applicants therefore do not meet cl.187.311.

29. The secondary applicants have only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream, as a secondary applicant have not been met, the decision under review must be affirmed.

    decision

30. The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Peter Emmerton
    Member

    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.